Gauhati High Court
Abdul Karim Kaji And Ors vs On The Death Of Yeskub Ali His Legal Heirs ... on 18 February, 2020
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/13
GAHC010144372009
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA 134/2009
1:ABDUL KARIM KAJI AND ORS
S/O MD. ABDUL ALI KAJI, R/O MUTAWALLI, SINGERBOND BORO MASJID,
SINGERBOND, DIST. CACHAR, ASSAM.
2: (e) HANIF KAZI
W/O LT HAFIZ TAMIZUR RAHMAAN R/O MUTAWALLI
SINGERBOND BORO MASJID
SINGERBOND
DIST. CACHAR
ASSAM.
2: (b) ANIS AHMED KAZI
S/O LT HAFIZ TAMIZUR RAHMAAN R/O MUTAWALLI
SINGERBOND BORO MASJID
SINGERBOND
DIST. CACHAR
ASSAM.
2: ON THE DEATH OF HAFIZ TAMIZUR RAHMAN HIS LEGAL HEIR (a)
MEHERUN NESSA
W/O LT HAFIZ TAMIZUR RAHMAAN
R/O MUTAWALLI
SINGERBOND BORO MASJID
SINGERBOND
DIST. CACHAR
ASSAM.
2: (d) MD FARHAN KAZI
W/O LT HAFIZ TAMIZUR RAHMAAN R/O MUTAWALLI
SINGERBOND BORO MASJID
SINGERBOND
Page No.# 2/13
DIST. CACHAR
ASSAM.
2: (c) NASIM AHMED KAZI
W/O LT HAFIZ TAMIZUR RAHMAAN R/O MUTAWALLI
SINGERBOND BORO MASJID
SINGERBOND
DIST. CACHAR
ASSAM.
3: MD. NURUL HUDA KAJI
S/O LATE MAULAVI ABDUL HAI KAJI
R/O MUTAWALLI
SINGERBOND BORO MASJID
SINGERBOND
DIST. CACHAR
ASSAM.
4: MAULAVI JALAL UDDIN
S/O LATE KAMAL UDDIN
R/O MUTAWALLI
SINGERBOND BORO MASJID
SINGERBOND
DIST. CACHAR
ASSAM
VERSUS
1:ON THE DEATH OF YESKUB ALI HIS LEGAL HEIRS HALIMAN BEGUM
DAU AND ORS
YUSUF ALI SON SAMSUN NESSA @ EMERCHANDI BIBI DAU AHMED ALI
SON MAHMUDA BIBI DAU SALEHA BIBI DAU
2:ON THE DEATH OF TARAB ALI HIS LEGAL HEIRS SITARA BIBI WIFE
KUTUB ALI SON NASIRA BIBI @ KOMLA DAU TOMBI BIBI DAU SAMSER
UDDIN SO
Advocate for the Petitioner : MR.P KATAKI
Advocate for the Respondent : MS.U BARUAHR-1D
Page No.# 3/13 BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI Judgment & Order Date : 18-02-2020 The powers conferred by Section 100 of the Code of Civil Procedure have been sought to be invoked by preferring the present appeal whereby the appellants have put to challenge a judgment and decree dated 08.04.2009, passed in Title Appeal No. 14/2006 by the Civil Judge No. 1, Cachar. The First Appellate Court had allowed the appeal by reversing the judgment dated 10.03.2006 and decree dated 17.03.2006, passed by the Munsiff No. 2, Silchar in Title Suit No. 22/1996. The defendants are the appellants in the instant appeal.
2. Before proceeding in the matter, it would be convenient to narrate a brief background of the facts of the case.
3. The plaintiffs/respondents had instituted the present suit for declaration of right, title and interest for confirmation of possession and for cancellation of Registered Document No. 568 to 571 executed by Khairunecha as illegal. It is the case of the plaintiffs that the suit land was originally settled with Late Yusuf Mian. On his death, the only living legal heir, Amzad Ali, who is the grandson of Yusuf Mia, had become the owner. The suit land comprised of 10 Bigha 3 Kathas and 12 Chetak.
4. During the life time of Amzad Ali, he had executed a registered Sale Deed in the year 1948 and sold land measuring 2 Bighas 8 Kathas and 8 Chhataks in favour of his wife Rahima Bibi. On the death of Amzad Ali, he left behind his wife Rahima Bibi and only daughter Khairunecha. He also has two uncles, namely, Samsul Hoque and Jarafat Ali. The plaintiffs further projected that Khairunecha being issueless and a widow for a long time had lost her senses and the sale made by the aforesaid Khairunecha vide Registered Document No. 560 to 571 to the principal defendants was the subject matter of challenge and the suit was filed with the following relief:-
Page No.# 4/13 "In the circumstances stated above the plaintiffs pray decree against the principal defendants.
(a) for declaration of plaintiff's right, title and interest over the suit 1 st schedule of land and possession thereof be confirmed,
(b) for declaration that the Registered documents Nos. 568 to 571 in the name of principal defendants shown to be executed by Khairunecha Bibi is illegal, inoperative and liable to be set aside.
(c) for permanent injunction restraining the principal defendants from entering into the suit land and interfering with the possession of the plaintiffs over the suit land and house standing thereof.
(d) for awarding full cost of the suit,
(e) for such other and/or further relief/reliefs as may be deem fit and proper."
5. The defendants had contested the case and filed their written statements. In the said written statements, the sale made by Khairunecha has been categorically defended by stating that the vendor has absolute right, title and interest over the suit land which was duly transferred upon the defendants on such purchase. In the written statement, it has been pleaded that the inability of the vendor Khairunecha to execute such deed has not been pleaded at all and only a vague statement regarding the mental health of Khairunecha has been made in the plaint.
6. The learned Trial Court after hearing had framed the following issues:-
1. Whether there is cause of action for the suit?
2. Whether the suit is maintainable?
3. Whether the suit is barred by limitation?
4. Whether the suit is under-valued and proper Court fee have been paid?
5. Whether the suit patta is an ejmali patta?
6. Whether the plaintiffs are entitled to right title and interest over the Suit land?
7. Whether the plaintiffs are possessing the suit land?
8. Whether the registered documents being Nos. 568 to 571 are illegal, Page No.# 5/13 inoperative and liable to be set aside?
9. Whether the plaintiffs are entitled to decree as prayed for?
10. To what relief the Plaintiffs are entitled to?"
7. For a proper adjudication of the matter, the learned Court below examined three numbers of plaintiff witnesses alongwith eleven numbers of documents whereas the defendants had examined two numbers of witnesses. Amongst the various issues, the finding of Issue No. 8 was of vital importance. The said issue is in connection with the evidentiary value of the Registered Document Nos. 568 to 571. The learned Court after discussing the materials had answered the said issue by holding that the plaintiffs had failed to discharge the burden of proof that the Registered Documents No. 568 to 571 were illegal and inoperative. Accordingly, the suit was dismissed on merits vide judgment dated 19.03.2006.
8. The aforesaid judgment was the subject matter of Title Appeal No.14/2006 before the learned Court of the Civil Judge No. 1, Cachar at Silchar.
9. The learned First Appellate Court, however, was of the opinion that Khairunecha, the vendor, was not mentally stable and, therefore, she could not have executed a valid Sale Deed. Accordingly, the appeal was allowed and the suit accordingly decreed in favour of the plaintiffs vide the impugned judgment and decree dated 08.04.2009.
10. Against the aforesaid judgment and decree, the present appeal has been preferred.
11. This Court while admitting this appeal, vide order dated 04.09.2009 while issuing notice in this case had formulated the following substantial questions of law: -
"The appeal is admitted for hearing on the following substantial questions of law: -
1. Whether the plaintiffs could prove that the vendor of the defendants was of unsound mind and incapable of entering into a contract within the meaning of Section 12 of the Indian Contract Act, 1872?
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2. Whether in view of the provisions contained in Section 31 of the Specific Relief Act, 1963 as well as the Wakaf Act the learned court below could have declared the Ext. C,D,E, & F as void and illegal?
3. Whether the learned court below while deciding the issue Nos. 6 to 8 has misconstrued the provisions of Section 54 of the Transfer of Property Act?"
12. I have heard Shri B. Bhagawati, learned counsel for the appellants as well as Shri N. Dhar, learned counsel for the respondents. The records which were called for vide the order dated 04.09.2009 have been received and have been duly examined.
13. Shri Bhagawati, learned counsel for the appellants submits that there was no reason for the First Appellate Court to reverse the findings of fact by the learned Trial Court. It is submitted that the plea of insanity was taken in a very feeble manner and no attempt was made to establish such plea of insanity of the vendor of the plaintiff namely, Khairunecha. It is submitted that the Doctor who was produced as an witness to prove the insanity was a simple MBBS and not a Specialist and accordingly the burden of proof, which is of a higher degree, does not get discharged. Referring to Section 12 of the Indian Contract Act, 1872, Shri Bhagawati submits that even assuming that the plea of unsoundness of mind has got some substance, such insanity has to be established as on the time when the contract was executed, inasmuch as, even the legal provision goes to the extent that a person who is usually of unsound mind but occasionally of sound mind may make a contract when he is of sound mind.
14. Additionally, the learned counsel has also referred to the Mental Health Act, 1987, especially Section 4 thereof which mandates the State Government to establish an Authority for mental health. He submits that it was never pleaded by the plaintiffs that the incumbent in question was ever treated or admitted under such Authority and therefore, such plea falls through. Accordingly, he submits that the judgment and decree passed by the learned Trial Court was a reasoned one and was not liable to be reversed by the First Appellate Court.
15. On the other hand, Shri N. Dhar, learned counsel submits that no substantial question of law is involved in the present proceeding and, therefore, there is no occasion for interference Page No.# 7/13 with the judgment of the First Appellate Court. Replying to the submission made on behalf of the appellants that the Doctor in question was merely an MBBS and, therefore, incompetent to certify insanity of the incumbent. Shri Dhar, learned counsel submits that in the course of MBBS, Psychiatric is also a subject and every MBBS student would have the basic knowledge about the subject and would accordingly be competent to certify insanity.
16. The learned counsel further submits that a particular witness was a pardanashin lady belonging to the Meitei Community prevalent in the State of Manipur and could speak Meitei only and, therefore, deposition could not have been taken into consideration. He therefore submits that no case for interference with the First Appellate Court's judgment is made out.
17. Shri Dhar, learned counsel in support of his submission relies upon the following decisions:-
1. AIR 1955 Cal 17 (Sonia Parshini Vs Sheikh Moula Baksha)
2. AIR1998 Gau 22 (Mahiruddin Borbhuiya Vs Rythun Nessa)
3. (1999) 121(1) PLR29 [Jodh Singh and Ors Vs The Registrar, (Deputy Commissioner) and Ors.]
4. 2005 (Suppl) GLT 550 (Jyotindra Bhattacharjee Vs Sona Bala Bora and Ors).
5. 2016 (8) ADJ567 (Nathu Singh and Ors. Vs Rajvati and Ors).
18. The case of Sonia Parshini (supra) has been cited with regard to the plea of pardanashin lady in which case some more care has to be taken regarding execution of any deed by such lady. The case of Mahiruddin Borbhuiya (supra) has been cited to support the argument that execution of a Sale Deed by an illiterate lady with an allegation of fraud was accepted by this Court.
19. On the plea of insanity the case of Jodh Singh (supra), Jyotindra Bhattacharjee (supra) and Nathu Singh (supra) has been cited wherein the guidelines has been laid down regarding the mode to proof insanity.
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20. Shri B. Bhagawati with reference to his rejoinder submits that all the aforesaid grounds by the respondent are taken for the first time in this Court, that too, in the second appellate stage and are not liable for any consideration. He further submits that the plea of insanity is an exception which requires a higher degree of proof than mere preponderance of probability.
21. The rival submissions made by the learned counsel for the parties have been duly considered.
22. The records of the case which were called for by this Court have also been carefully examined.
23. Before proceeding to consider the rival contentions advanced on merits, it would be necessary to remind ourselves the contours within which jurisdiction can be exercised under Section 100 of the Code of Civil Procedure.
24. The Hon'ble Supreme Court in the case of Ravi Setia Vs. MadanLal, reported in (2019) 9 SCC 381 has laid down as follows: -
15. There can be no quarrel with the well settled proposition of law that in a second appeal, the High Court ought not to enter into reappreciation of evidence to arrive at new findings, except on pure questions of law. But if the findings are perverse, based on complete misappreciation or erroneous consideration of evidence, and the failure to consider relevant evidence, it becomes a question of law........"
25. In the aforesaid decision, the Hon'ble Supreme Court also took into consideration its earlier judgment in a case reported in 1988 Supp SCC 710 ( Dilbagrai Punjabi Vs. Sharad Chandra), which is also extracted below: -
"5.....The High Court was right in pointing out that the courts below had Page No.# 9/13 seriously erred in not considering the entire evidence on the record including the aforesaid documents. It is true that the High Court while hearing the appeal under Section 100 of the Code of Civil Procedure has no jurisdiction to reappraise the evidence and reverse the conclusion reached by the first appellate court, but at the same time its power to interfere with the finding cannot be denied if when the lower appellate court decides an issue of fact a substantial question of law arises. The court is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding...."
26. As has been laid down by various jurisdictional pronouncements, involvement of substantial questions of law is a sine qua non for entertaining a second appeal.
27. The present case is a case of reversal of the judgment rendered by the Trial Court by the First Appellate Court. While interfering with the judgment of the Trial Court by which the suit was dismissed, the First Appellate Court has reversed the finding with regard to the due execution of the Sale Deed on the ground that the vendor was not of sane mind. Since the execution of the same was on commission, the place of execution has also been one of the grounds of interference.
28. Plea of insanity is an exception and the degree of proof of such plea is somewhat higher than a normal proof in a civil case which is on the basis of preponderance of probabilities. Since insanity is an exceptional case, a heavy duty is cast upon the party taking such plea of insanity as a ground in the case. So far as the legal provision taking care of such a situation is concerned, Section 12 of the Indian Contract Act, 1872 may be referred to, which is extracted hereinbelow: -
"12. What is a sound mind for the purposes of contracting.--A person is said to be of sound mind for the purpose of making a contract, if, at the time when he Page No.# 10/13 makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests.
A person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind.
A person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind.
Illustrations
(a) A patient in a lunatic asylum, who is at intervals of sound mind, may contract during those intervals.
(b) A sane man, who is delirious from fever or who is so drunk that he cannot understand the terms of a contract, or form a rational judgment as to its effect on his interests, cannot contract whilst such delirium or drunkenness lasts ."
29. A bare perusal of the said provision of law would bring us to a conclusion that the crucial point of determination in case a plea of insanity is taken is the time of execution of the contract. The Legislature, in its wisdom, had even clarified that person who is usually of unsound mind but occasionally of sound mind is capable of entering into a contract when he is a sound mind. As a corollary, it is also the law that a person who is usually of a sound mind but occasionally of unsound mind may not make a contract when he is of unsound mind. The illustration (a) makes it clear that even a patient in a lunatic asylum, who is, at intervals of sound mind, may contract during those intervals.
30. Section 4 of the Mental Health Act, 1987, the provisions of which was brought to the notice of the Court, may also be referred to.
"4. State Authority for Mental Health Services -
(1) The State Government shall establish an Authority for mental health with such designation as it may deem fit."
31. It is not the case of the plaintiffs that the incumbent was ever stated to have been treated or admitted under such Authority which is mandatorily required to be constituted by the State.
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32. The only pleadings in this regard found in the plaint is in paragraph 9 where a vague statement has been made that Khairunecha being issueless and a widow in her old age had become unfit to pass a normal life and, therefore, the plaintiffs who were her uncle had taken care of her. It was further stated that -
"at the fag of her life, Khairunecha Bibi fell ill due to mental illness had lost her senses, and she was quite indifferent to worldly affairs for more than five years and was under treatment of Doctor N.R. Singh since 3 rd July 1995 being bed ridden and died on 23.8.95 leaving the plaintiffs as her legal heirs".
The aforesaid pleadings read with the evidence do not fulfil the requirement of establishing the unsoundness of mind of Khairunecha Bibi at the time of execution of the contract.
33. Certain other points relevant to the aforesaid issue which were also taken note of by the Trial Court are required to be noted. The plaintiffs had filed records of Case No.253/M/95 which was under Section 145 of the CrPC filed by the plaintiff No.1 before the Executive Magistrate, Lakhipur against the defendants. The said record reveals that the plaintiff No.1 came to know about the mental illness of Khairunecha only after her death. The petition was exhibited as Ext-A and the signature of the plaintiff No.1 as Ext-A(1). The learned Trial Court also took into account that the Doctor who was examined as PW2 apart from being a general physician was working in the Pathology Department of the SMCH for ten years before he started his private practice and in fact, he had referred Khairunecha for further treatment by a Specialist and had only given an opinion that she may be suffering from mental disorder. Further, as per Ext-3, the cause of death was stated to be cerebra-vascular accident which has got nothing to do with mental disorder. Though another death certificate was issued by PW2, being Ext-B dated 02.09.1995, the cause of death has been stated to be cerebra-vascular accident. The evidence of the plaintiffs further revealed that though the plaintiffs claimed that Khairunecha was bed ridden before her death, as per PW2, she had herself come to his chamber. All these aspects were taken into consideration before coming to a conclusion that the plea of mental disorder was only an afterthought and this Court is also of the opinion that Page No.# 12/13 the aforesaid aspects are relevant consideration before coming to the said finding.
34. In the instant case the efforts made by the plaintiffs in trying to establish the plea of insanity do not, in the opinion of this Court, meet the standard of proof required. Insanity is a state of mind which refers a human being to act in a manner which may not be reasonable and without understanding the consequences thereof. So far as the attempt by the plaintiffs to establish the insanity of the vendor by producing the Doctor who had allegedly treated her was revealed at the time of cross-examination to be only an MBBS without any further qualification on Psychiatric. No other materials or provisions in support of such plea have been taken by the plaintiffs. A further attempt has been made at the stage of the second appeal for the first time that a particular witness was not conversant in Bengali language. Such plea cannot be taken into consideration as the same has been taken for the first time in second appeal. In any case, a perusal of the records does not demonstrate that any question was not understood by the witness which was done before the learned Court.
35. In view of the aforesaid discussions, this Court finds substance in the present appeal and accordingly interferes with the judgment and decree dated 08.04.2009, passed by the learned Civil Judge No.1, Cachar in TA No.14 of 2006.
36. So far as the substantial questions of law are framed, this Court is of the opinion that the plaintiffs were not able to prove that the vendor was of an unsound mind and rather the provisions of Section 12 of the Indian Contract Act, 1872 save such a situation. So far as the second question is concerned with regard to the provisions contained in Section 31 of the Specific Relief Act, 1963, Exts-C, D, E and F could not have been declared void and illegal. It is also held that there has been misconstruction of the provisions of Section 54 of the Transfer of Property Act while deciding Issue Nos. 6, 7 and 8.
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37. The appeal is accordingly allowed. Send back the records.
JUDGE Biplab Comparing Assistant